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Canadian Motion Pictures Distributors Association (CMPDA)

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Canadian Motion Pictures Distributors Association (CMPDA)

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

Documents received have been posted in the official
language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

Submission from Canadian Motion Pictures Distributors Association (CMPDA) received on
September 14, 2001 via e-mail

This is the submission of the Canadian Motion Picture Distributors Association (CMPDA) in response to Consultation Paper on Digital Copyright Issues (the Consultation Paper) published by the
Departments of Canadian Heritage and Industry (the Departments) on June 22, 2001.

The members of CMPDA are Buena Vista (Disney), Metro-Goldwyn-Mayer, Paramount/Viacom, Sony/Columbia, Twentieth Century Fox, Universal and Warner Bros. Our members are engaged in the distribution
of feature films and television programs in all media of distribution in Canada and throughout the world. One of CMPDA’s functions is to participate in consultations with the Departments with a view
to ensuring that Canadian law provides adequate copyright protection to cinematographic works.

EXECUTIVE SUMMARY

Making Available
1. CMPDA proposes to make no submissions with respect to "making available" as the Consultation Paper states that the Copyright Act already provides for an on-demand communication
right for works, confirming the view of the Copyright Board and others, and that therefore the Government does not intend to amend the Act in this respect.

Legal Protection of Technological Measures
2. Anti-circumvention provisions (as required for WIPO Treaty adherence) should be implemented. They should either added to the Copyright Act, or the Copyright Act should refer the reader to the
appropriate statute.

3. No exemptions from anti-circumvention provisions are required with respect to works in the public domain, as market forces will be sufficient to maintain the availability of those works in
the public domain for which there is a demand.

4. Exemptions from liability for infringement of copyright in works (e.g. fair use and certain uses by educational institutions, museums, libraries and archives) are defences to actions for
infringement. There is no justification for creating an obligation on copyright owners to provide access to works, whether or not they are technologically protected and whether or not the proposed
use is exempt from liability.

5. Anti-circumvention provisions should include a prohibition on circumvention devices in addition to a prohibition on acts of circumvention.

6. Anti-circumvention provisions (and all other terms of the WIPO treaties) should be implemented promptly.

7. Exemptions from prohibitions against acts of anti-circumvention applicable to classes of works should be implemented through Regulations and expire automatically after three years. Any such
exemptions should not apply to any work if the owner of that work makes a system available whereby users or their institutions can obtain access to that work for that exempted use.

Legal Protection of Rights Management Information
8. The Canadian Act should prohibit tampering with "rights management information", and the definition in the WIPO Treaties (including terms and conditions of use) should be
incorporated in the legislation.

9. Whether or not rights management information may cease to be accurate over time is a concern that should be left to the rights holders, who have an interest in its currency and accuracy.

10. Providing false or misleading rights management information should be an offence.

11. Unauthorized removal or alteration of rights management information should be an offence.

12. Legislation should assume that technological protection and rights management information are discrete. The risk of duplicate or overlapping sanctions should be left to the discretion of the
Courts.

Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright
13. Any unauthorized reproduction or communication to the public should result in liability for infringement, subject only to carry liability unless specifically authorized or exempted.

14. Rights holders should have the option of using either the existing collective management provisions of the Act or a notice and takedown regime. Compulsory licensing of ISPs is not
appropriate.

15. There should be no consideration of exemptions to the reproduction right beyond the context of ISP liability.

16. CMPDA supports in principle the Departments' proposal "of establishing a complaints-driven, notice and takedown process that appears to address important preoccupations of both rights
holders and the ISP community." CMPDA notes that "the process would be subject to any contractual arrangements entered into by ISPs with rights holders; in the absence of such contractual
arrangements, a statutorily-specified process would apply," and recommends that agreements and tariffs entered into pursuant to the provisions of the Act relating to voluntary collective
management be included in the reference to other contractual arrangements.

17. The Act must clearly provide that any unauthorized reproduction or communication to the public by an intermediary is an infringement (subject to appropriate defences) and unless there is full
and prompt compliance with their obligations under a notice and takedown system.

18. CMPDA supports the proposal that an ISP would not be liable for reproductions of copyrighted materials in the form of caches that facilitate the communications process where the original or
initial communication is authorized.

19. CMPDA supports in principle the Department's proposal that (subject to appropriate defences) an ISP would be liable for having infringing material on one or more of "its sites"
unless it blocked access within a specified time (a) of receiving "proper notice" from a rights holder or other interested party that such material was potentially infringing or (b) once it
has actual knowledge of infringing material or activity or is aware of facts or circumstances from which infringing activity is apparent.

20. CMPDA further submits that injunctive relief should be available, even when an ISP has complied with its obligations to block access.

21. The CMPDA also supports the proposal that a cache, which is created to facilitate the communication of legitimate material from an authorized site, would not, of itself, constitute an
infringing reproduction.

22. Proper notice to ISPs should be in writing; provide clear identification of the claimant and his/her interest in the infringing material; set out the precise claim, including a description of
the infringing material; and, give the location of the infringing material.

23. An ISP that acts in good faith to block access to a site specified in a "proper notice" should not be liable for the harm suffered in consequence by its client or other third party.

24. CMPDA reserves comment on the additional requirement that "the claimant must corroborate its claim in a timely fashion" pending further details of what such corroboration would
entail.

25. An ISP should only be eligible for the benefits of the notice and takedown provisions if it

Establishes an identifier on the sites it hosts and its cache sites that would enable an interested party to communicate directly with them.

Has a policy of terminating accounts of habitual infringers, and inform its subscribers of this policy.

Has a policy of not interfering with (or accommodating interference with) technical measures for identifying or protecting works.

Has a policy of accommodating standard technical measures for identifying or protecting works.

For caching and user storage, the ISP must also provide the name of an agent for receiving notices from rights holders.

26. Copyright owners and other interested parties should have the ability, in the absence of voluntary compliance, to obtain an order requiring an ISP to comply with the notice and takedown
regime and such order should be available ex parte by way of a summary proceeding.

DETAILED SUBMISSIONS

Making Available
1. The Departments have stated in the Consultation Paper that the Copyright Act already provides for an on-demand communication right for works, confirming the view of the Copyright Board and
others, and that therefore they do not intend to amend the Act in this respect.

2. CMPDA, therefore, makes no submissions with respect to "making available" in this phase of the consultation process.

Legal Protection of Technological Measures
Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over and access to copyright protected material, what
factors suggest legislative intervention at this time?

3. In December it will be four years since Canada committed to signing the WCT and the WPPT and five years since the treaties were negotiated with Canada's active participation. In this context,
in December 1997, the Minister of Heritage said, "Copyright is the lifeblood of creators and new technologies make it all the more important to balance the rights of creators and the needs of
copyright users." In the same announcement, the then Minister of Industry said, "The treaties support the federal government's goal of making Canada a leading-edge supplier of content for
the information highway and multimedia, and reflects the federal government's role in creating the right conditions for electronic commerce." said Minister Manley.

4. Content is critical to the success of a number of government initiatives directed at making new digital distribution systems available throughout Canada. Without adequate copyright protection
content owners will be reluctant to authorize distribution of their works using these new technologies.

5. There is no reason to believe that the "rapid evolution of technology" will slow down or that substantial information regarding "the impact of technological measures on control
over and access to copyright protected material" will become available in the foreseeable future.

6. The Consultation Paper itself explains why technological measures and protection for such measures is desirable.

Several of the copyright sectors or "industries" have suggested that their willingness to embrace the Internet as a channel for disseminating their works or making them available
ultimately depends on their ability to prevent or discourage unauthorized copying and distribution activities which are easily carried out in the digitally networked environment.
...
The ICTs allow for rapid and essentially costless reproduction and communication of material, including copyright works, whether or not these have been authorized. From a copyright perspective, the
ICTs, though they open the possibility to much larger international markets for copyright material, also facilitate infringing reproductions and communications of such materials.

Some rights holders consider that their ability to assert their copyright in relation to a work or other protected subject matter is considerably diminished in the Internet environment once the
material is made available in that environment. In comparison with the analogue world, Internet-based infringers are potentially more numerous, more anonymous, and may operate from within
jurisdictions that provide relatively little copyright protection.

Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors should be considered determinative in deciding whether circumvention and/or related
activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?

7. One of the Departments' core principles is that "the framework rules should be clear and allow easy, transparent access and use." Technological measures will be used for the purpose
of preventing and detecting copyright infringement. It is therefore appropriate that anti-circumvention provisions be dealt with in the Copyright Act, to make it as easy as possible for owners and
users to find the relevant statutory provisions.

8. To the extent that circumvention of technology relates to other areas, such as patents, CMPDA recommends either that anti-circumvention provisions be duplicated in each relevant statute, or
that each such statute clearly refer to the legislation where the circumvention provisions are to be found.

9. CMPDA further submits that technological measures are not "extraneous to copyright principles", as suggested in the Consultation Paper insofar as they are intended to facilitate the
exercise and protection of rights granted under copyright.

If the government were to adopt provisions relating to technological measures, in which respects should such provisions be subject to exceptions or other limitations? Works in the public domain
10. CMPDA submits that market forces will be sufficient to maintain the availability of those works in the public domain for which there is a demand.

11. The use of technological measures is an additional cost of distribution of works. Copies of public domain works protected by such technology must compete with copies without such protection,
which can presumably be offered at a lower price.

12. Furthermore, as technological developments cause the costs of manufacturing and distributing such copies continue to decline, it may be assumed that the amount of demand that is required to
cause a supply of public domain works will decrease.Exempt Uses
13. Exemptions from liability for infringement of copyright in works are currently expressed as defences to actions for infringement. This is not the same thing as an obligation to provide access
- "copyduty" as opposed to copyright. CMPDA submits that there is no justification for creating an obligation on copyright owners to provide access to works, whether or not they are
technologically protected and whether or not the proposed use is exempt from liability.

Are there non-copyright issues, e.g. privacy, which need to be taken into account when addressing technological measures?

14. Technological measures do raise privacy concerns, but as privacy issues relate to civil rights, and are thus within the exclusive legislative jurisdiction of the Provinces, they would be
ultra vires a federal statute like the Copyright Act.Proposal
15. To be both "adequate" and "effective", anti-circumvention provisions must prohibit the business (and the sport) of providing circumvention devices, easily assembled
circumvention "tool kit" components and circumvention information, as well as outlawing the act of defeating a technological protection measure.

16. Anti-circumvention provisions should include a prohibition on circumvention devices in addition to a prohibition on acts of circumvention. There should be remedies against possessing,
importing, selling, letting for hire, by way of trade offering or exposing for sale any device whose purpose is to circumvent any technological measure used to protect a right or rights conferred
under the Copyright Act.

17. The act of circumvention will often take place in private homes or elsewhere where detection and enforcement are difficult and raise privacy issues. A prohibition against the act of
circumvention, without a prohibition against dealing in anti-circumvention devices, would not be adequate or effective and therefore would not meet the obligations required by the Treaties.

18. The Consultation Paper hints that the implementation of anti-circumvention provisions may be further delayed, so that more consultation and study can take place. The CMPDA urges that
anti-circumvention provisions be implemented as quickly as possible.

19. Until all the provisions of the WIPO treaties are implemented, Canadian copyright owners will continue to be deprived of the level of international protection resulting from the
implementation of any of them.

20. Rather than further delay Canada's adherence to the WIPO treaties, CMPDA recommends that Canada make use of the experience of other countries who have already adhered, and who shared the
Departments' concerns with respect to the balance between protection for owners and access for users.

21. Specifically, CMPDA recommends that
· anti-circumvention provisions (and all other terms of the WIPO treaties) be implemented promptly;
· exemptions from prohibitions against acts of anti-circumvention applicable to classes of works be implemented through Regulations and expire automatically after three years; and
· exemptions from prohibitions against acts of anti-circumvention should not apply to individual technologically protected works where the work is within a class of works exempted from
those provisions, but where the owner makes available a system whereby users or their institutions can obtain access to that work for that exempted use.
Legal Protection of Rights Management Information

22. CMPDA is pleased to see a clear statement in the Consultation Paper, that the Departments "consider that rights owners should have effective remedies against ... manipulation of their
rights management information."

What information should be protected under the Copyright Act? Given that information may cease to be accurate over time, should information relating to, for example, the owner of copyright and to
terms and conditions of use be protected?

23. CMPDA recommends that the Canadian Act incorporate the definition of "rights management information" as set out in the WIPO Treaties - Option A from the Consultation Paper.

24. CMPDA submits that the WIPO definitions are sufficiently broad to include "first owner," if the owner chooses to include that information.

25. CMPDA does not support Option B, which would exclude terms and conditions of use.

26. Inclusion of terms and conditions of use is necessary to enable Canada to adhere to the WIPO Treaties. Furthermore, protection of information about terms and conditions of use will be an
incentive for some owners to make their works available.

27. The Consultation Paper asks whether the adoption, universally, of a single identifying code (such as the ISAN) would render protection of other types of information unnecessary. CMPDA submits
that protection of other types of information is necessary. Use of the ISAN will be voluntary. Some owners may choose to supplement the ISAN information or to use other mechanisms and systems
entirely. If such additional or alternative information is covered by the definition of rights management information, it should also be protected.

28. Whether or not rights management information may cease to be accurate over time is a concern that should be left to the rights holders, who have an interest in its currency and accuracy.

29. Based on the ISAN deliberations, it may well be that owners will deliberately omit ownership information. To the extent that "first owner" information is provided, it is not likely
to be labelled as such, but rather as "producer", "writer", "composer", etc.

30. In any event, CMPDA submits that Canada's adherence to the WIPO Treaties is desirable, and therefore amendments to the Act must be consistent with those Treaties.

31. CMPDA urges that it should be an offence to knowingly provide false or misleading rights management information.

Certain terms and conditions may not be legally valid in Canada if they are contrary to public policy. In light of this, what limitations should there be on the protection of such information? Is
a provision required that specifies that the protection of such information does not imply its legal validity in Canada?

32. CMPDA submits that terms and conditions must be protected as part of rights management information. While we do not believe that such protection would deem such information to be legally
valid in Canada, we would not object to a statement in the Act that the legal validity of terms and conditions should not be assumed.

Given the fact that some technologies serve a dual purpose, i.e., reflect rights management information and protect a work against infringement, how should provisions concerning rights management
information take into account provisions regarding technological measures?

33. CMPDA submits that legislation should assume that technological protection and rights management information are discrete.

If the Act were amended to protect rights management information, does the fact that some technologies may be used both to set out rights management information and protect a work against
infringement mean that duplicate or overlapping sanctions could result in some cases?

34. CMPDA submits that the question of appropriate sanctions should be left to the discretion of the Courts.

Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing rights management information?

35. As stated above, privacy issues relate to civil rights, and are thus within the exclusive legislative jurisdiction of the Provinces.Proposal
36. The CMPDA endorses the principles of the proposal in the Consultation Paper:

article 12 of the WCT and article 19 of the WPPT should form the basis for a proposal to create new types of secondary infringement and new offences under the Act.

secondary infringements should consist of the unauthorized removal or alteration of rights management information that impede the management of rights set out by law or for the purpose of
enabling or abetting infringement of copyright and related rights.

Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright

37. CMPDA notes the comment in the Consultation Paper that, for the purposes of the Paper, the ISP activities that are of interest are those that relate to enabling and facilitating access to and
exchange of content on behalf of clients, i.e., where the ISP provides storage space, acts as a conduit for enabling access to information or takes measures to improve the efficiency of this service.
CMPDA's comments reflect the Departments' decision to "put aside for the present time consideration of those activities where the ISP is in some way involved in the selection of particular
content."

Do the current provisions of the Copyright Act already adequately address ISP concerns?

38. The current provisions of the Copyright Act do not already adequately address ISP concerns. SOCAN filed its first proposed tariff with respect to the communication of musical works via the
Internet (Tariff 22) in 1995. As a direct consequence of a lack of clarity with respect to copyright obligations of ISPs, these issues are still before the courts and it will be 2002 (or later)
before the Copyright Board is in a position to certify a tariff.

39. Furthermore, as noted in the Consultation Paper, although the Canadian Association of Internet Providers (CAIP) are to be commended for their efforts to date with respect to self-regulation,
neither their Code of Conduct nor their Fair Practices Document contain provisions specifically addressing notice and takedown with respect to material that infringes copyright.

Some ISPs and rights holders have entered into agreements for dealing with infringing material. In what respects is this approach sufficient or insufficient?

40. Agreements are sufficient only for those who enter into them. Copyright law should always respect agreements negotiated between owners and users, but must provide a framework that encourages
negotiations and a regime for those who do not enter into agreements. In the language of the Consultation Paper, "The wide diversity of organizations and individuals who now qualify as rights
holders or who provide services as ISPs means that direct collaboration and agreement may not always be feasible. Accordingly, a role remains for the government to establish copyright liability rules
that are clear and fair."

What other intermediary functions that have not been discussed in this section, but that are nonetheless being carried out by ISPs, ought to be considered when developing a policy regarding ISP
liability?

41. Any function that is a communication to the public, a reproduction or the authorization of either should carry liability unless specifically authorized or exempted. CMPDA will reserve further
comment in this phase of the consultation process.

To the extent that a notice and take-down system is being contemplated, how would such a system affect the framework in Canada for the collective management of copyright? What alternative
proposals should be considered? Under what conditions would a compulsory licensing system be appropriate?

42. The CMPDA recommends a consideration of the provisions of s. 70.1 et seq. of the Copyright Act, which set out a regime for voluntary collective management of copyright. In particular, s.
70.12 provides:

70.12 A collective society may, for the purpose of setting out by licence the royalties and terms and conditions relating to classes of uses,
(a) file a proposed tariff with the Board; or
(b) enter into agreements with users.

43. CMPDA recommends that rights holders should have the option of using either the existing collective management provisions of the Act or a notice and takedown regime, that is they should be
able to contract out of the notice and takedown provisions through a private agreement entered into in accordance with s. 70.12.

44. CMPDA submits that compulsory licensing is not appropriate, and otherwise reserves further comments for subsequent phases of the consultation process.

To the extent that issues surrounding the scope and application of the reproduction right are being examined in relation to Internet-based communications, are there reasons why this examination
should be restricted to the question of ISP liability?

45. Examination of the scope and application of the reproduction right, that is, a consideration of exemptions beyond the context of ISP liability, should not be examined in the context of this
Consultation Paper. To do so would further delay addressing the numerous, complex issues that are essential to this consultation process.Proposal
46. CMPDA supports in principle the Departments' proposal "of establishing a complaints-driven, notice and takedown process that appears to address important preoccupations of both rights
holders and the ISP community." CMPDA notes that "the process would be subject to any contractual arrangements entered into by ISPs with rights holders; in the absence of such contractual
arrangements, a statutorily-specified process would apply," and recommends that agreements and tariffs entered into pursuant to the provisions of the Act relating to voluntary collective
management be included in the reference to other contractual arrangements.

47. The Consultation Paper states,

Under a notice and takedown system, an intermediary is shielded from copyright liability unless, after having received notice of infringing material on its facilities, it fails to take requisite
steps to address the situation. Notice creates the impetus for the ISP to remove the offending material by exposing the ISP to the risk of a (greater) liability for failure to act on such a
notice.

48. CMPDA submits that, if a notice and takedown system is to be effective, and to encourage negotiated agreements, the Act must clearly provide that any unauthorized reproduction or
communication to the public by an intermediary is an infringement, subject only to either (a) the defences ordinarily available to an alleged infringer (excluding the "common carrier"
exemption in s. 2.4(1)(b) in the case of ISPs), or (b) full and prompt compliance with their obligations under a notice and takedown system.

49. Under the Departments' proposal

An ISP would not be liable for copyright infringement when its facilities are used by a third party (including its clients) for disseminating copyright-protected material, whether this
dissemination is understood as communication to the public (i.e., through a network transmission process) or reproduction (e.g., for purposes of caching or Web site hosting).

50. CMPDA submits that the foregoing should apply only if the dissemination is authorized or if the ISP promptly and fully complies with its obligations under the notice and takedown provisions.
Failure to do so should result in liability, subject only to the defences ordinarily available to an alleged infringer (excluding the "common carrier" exemption in s. 2.4(1)(b)).

51. CMPDA supports the proposal that

Similarly, the ISP would not be liable for reproductions of copyrighted materials in the form of caches that facilitate the communications process where the original or initial communication is
authorized. [Emphasis added.]

52. CMPDA supports in principle the Department's proposal that an ISP would be liable for having infringing material on one or more of "its sites" unless it blocked access within a
specified time of receiving "proper notice" from a rights holder or other interested party that such material was potentially infringing. CMPDA would appreciate an explanation of what is
meant by "its sites".

53. However, in addition, CMPDA submits that an ISP should also be liable for infringing material on one or more of its sites if it fails to block access within a specified time once it has
actual knowledge of infringing material or activity or is aware of facts or circumstances from which infringing activity is apparent.

54. CMPDA further submits that injunctive relief should be available, even when an ISP has complied with its obligations to block access.

55. The CMPDA also supports the proposal that

In this respect, however, a cache which is created to facilitate the communication of legitimate material from an authorized site, would not, of itself, constitute an infringing reproduction.
[Emphasis added.]

56. The CMPDA agrees that "proper notice" should:

be in writing;

provide clear identification of the claimant and his/her interest in the infringing material;

set out the precise claim, including a description of the infringing material; and,

set out the location of the infringing material.

57. The CMPDA agrees that

[T]here would be limitations on the liability of ISPs for any economic harm resulting from compliance with the notice and take-down regime. That is, an ISP that acts in good faith to block access
to a site specified in a "proper notice" is not liable for the harm suffered in consequence by its client or other third party.

58. CMPDA reserves comment on the additional requirement that "the claimant must corroborate its claim in a timely fashion" pending further details of what such corroboration would
entail.

59. CMPDA endorses the suggestion that, for an ISP to be eligible for the benefits of the notice and takedown provisions it must establish an identifier on the sites it hosts and its cache sites
that would enable an interested party to communicate directly with them.

60. CMPDA proposes that an "eligible ISP" must also:
·

Have a policy of terminating accounts of habitual infringers, and inform its subscribers of this policy.

·

Have a policy of not interfering with (or accommodating interference with) technical measures for identifying or protecting works.

·

Have a policy of accommodating standard technical measures for identifying or protecting works

·

For caching and user storage, the ISP must also provide the name of an agent for receiving notices from rights holders.

61. In the Consultation Paper the Departments acknowledge that

[U]nlike a tariff regime, which provides for royalty payments to rights holders, a notice and takedown regime represents an overhead expense (i.e., the cost of monitoring and notification) that
is not offset by compensation. In this regard, however, the notice and takedown framework preserves the legal ability of rights holders to assert control over the reproduction and communication of
their works on-line. It reinforces this ability in practical terms by providing a quicker and less expensive mechanism than court proceedings for effecting the rapid removal of infringing content
from the networked environment.

62. CMPDA supports the principle that a notice and takedown regime should provide a "quicker and less expensive mechanism than court proceedings for effecting the rapid removal of infringing
content from the networked environment." Therefore, CMPDA urges that copyright owners and other interested parties should have the ability, in the absence of voluntary compliance, to obtain an
order requiring an ISP to comply with the notice and takedown regime and that such order should be available ex parte by way of a summary proceeding.

The CMPDA appreciates the opportunity to make submissions with respect to these issues and urges the Departments to promptly expand this process so as to include all other amendments necessary to
ratify the WCT and the WPPT. The international impact of these issues makes it imperative that international, as well as domestic, protection be extended to creators of works protected by copyright
so as to encourage Canadian creators to be full participants in the "knowledge economy."

All of which is respectfully submitted
Canadian Motion Picture Distributors Association